The Rhetoric of Powell's Bakke

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Volume 38 Issue 1 Article 4
Winter 1-1-1981
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Lewis H. LaRue
Washington and Lee University School of Law, [email protected]
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Lewis H. LaRue, The Rhetoric of Powell's Bakke, 38 Wash. & Lee L. Rev. 43 (1981).
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THE RHETORIC OF POWELL'S BAKKE
L. H. LARuE*
By now, much has been written on the Bakke case,' and particularly
on Justice Lewis Powell's opinion. Even so, much more needs to be writ-
ten, for much is at stake. Consequently, we should turn away from
legalisms and turn ourselves towards the different ways in which the
opinion persuades or fails to persuade.
Why study the opinion as an act of persuasion, as a piece of rhetoric?
We are all familiar with the trivial commonplace that judicial opinions
are not very good reports of how and why the judge reached a decision.
Opinions do not report the order in which the judge learned things, nor
the work done to solve the problems of the case. Instead, an opinion ex-
plains and justifies in a different sort of way: we do not get very much of
the biography of the decision; we generally get only an argument that
the decision is correct.
However, the fact that judicial opinions are, in part, attempts to per-
suade does no more than make rhetorical analysis possible. The real
question is whether such analysis is desirable. One can differ on this, but
one very important question about an argument is: what sort of world
does it assume that we live in?; or that we should live in? This question
can be restated in a more personal and less abstract way by asking: what
sort of people will we become if we are persuaded by this argument?;
what sort of community will we have for our sharing?
I.
Part I of the opinion is the statement of facts, some of which are well
known. The Medical School of the University of California at Davis had a
"6special admissions program." The Medical School received about 3,000
applicants a year for admission; there were 100 places in each class. If
applicants were to be selected for admission on the basis of indexing
numbers such as Grade Point Average (GPA) or the Medical College Ad-
missions Test (MCAT), then few or no blacks would be admitted. In order
to avoid this result, the faculty voted to reserve sixteen places in each
class for "disadvantaged" or "minority group" applicants, a category
that included Negroes, Chicanos, Asians, and American Indians. Allan
Bakke, a Caucasian, who had a strong record based on his GPA and
MCAT, applied and was denied admission; he sued.
A statement of facts can be put together in many different ways, and
the persuasiveness of a judicial opinion can be increased or decreased
* Professor of Law, Washington & Lee University; A.B. 1958, Washington & Lee
University; LL.B. 1962, Harvard University.
' Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).
44 WASHINGTON AND LEE LAW REVIEW [Vol. XXXVII
markedly by the skill with which the statement of facts has been
assembled. One of the ways in which this statement of facts can have an
impact is by unsettling expectations. In the first place, most judicial
observers knew, or thought they knew, the facts of Bakke; but Justice
Powell's statement of facts takes approximately nine pages.2 This can
persuade by disarming; one is met with facts as to which one was ig-
norant, and this may have the effect of inducing some lessening of
preconceptions. On another level, the length of the statement of facts
might by association of ideas lead one to posit care in the author of the
opinion and thus give rise to some presumption of credibility.
Aside from this subliminal persuasion by length, are there any other
parts of the statement of facts that might appeal to the reader? Several
pages' of Powell's statement of facts are devoted to showing how
qualified Bakke was. For example, when he first applied in 1973, his
qualifications, judging by grades and test scores, were as good as most
of those who were admitted, and in 1974, he was clearly better.
However, he had complained about the special admissions program in
1974 and the Dean to whom he complained was his faculty interviewer.
The Dean gave him a low rating and after he was rejected, the Dean did
not exercise his discretion to put Bakke on the waiting list. When I read
those facts, am I supposed to conclude that Bakke was unfairly treated? If
so, what about the omission of any mention of these facts when the ra-
tionale of the decision is explained?
II.
In the second part of the opinion, Justice Powell, in a lawyer-like
fashion, takes up a statutory issue before he reaches the constitutional
problem. As a performance, this enacts the values of caution and
restraint, and so it might be expected to have some persuasive value by
increasing our confidence in Justice Powell. However, one suspects that
most readers of the opinion had too much prior knowledge for Part II to
work in this way. One knows that it is a constitutional case; one already
knows from the newspapers that it was not disposed of on statutory
grounds; and so the average reader probably thumbs through these
pages rather quickly, not attending to any of the details of the language
or of the argument.
III.
Most readers probably begin to pay close attention in Part III when
they sense that the opinion is now settling into the key constitutional
issue. The delay in getting this far perhaps has piqued interest, has in-
2 Id at 272-81.
Id. at 276-77.
Id at 288.
'
1981] RHETORIC OF POWELL'S BAKKE
creased tension and suspense. In Part III, Powell begins by stating the
issues, posing them by way of a report on the parties' disagreement. The
issue, as stated, is whether or not there should be strict scrutiny of the
racial classification used in the Davis plan. In the next two paragraphs,
he turns aside from this issue to a separate one: he states that the par-
ties disagree as to the "proper characterization of the special admissions
program."' The school called it a goal, Bakke called it a quota. Powell's
response is to say: "this semantic distinction is beside the point."5 He
asserts that whatever you call it, it is a classification based on race.
As a piece of rhetoric, this was a nice move. The semantic distinction
conceals a larger issue. Quota has a nasty ring to it, whereas goal sounds
more harmless. By finessing the point, and saying that it is a classifica-
tion, Powell creates the impression that he is not a man to be bogged
down in trivia or quibbles, but one who wishes to get to the larger issues
of principle that are at stake. One nods in agreement, and, of course, it is
always good strategy for a writer to start with statements with which
the audience will agree.
But before these larger issues of principle can be decided, some
preliminary matters are relevant. Powell asserts: "The guarantees of
the Fourteenth Amendment extend to all persons."8 However, even ac-
cepting this conclusion, there is a subtle ambiguity: on the one hand,
there is the question of the persons protected by the equal protection
clause, that is, whether the entire population can claim rights under that
clause; on the other hand, there is the question of the content of the
rights created by the equal protection clause, that is, whether all
members of the population have the same -sorts of rights protected by
that clause.
Powell addresses this issue by reporting it as an argument that is
advanced by the lawyers; he reports that they argue that "white males,
such as [Bakke], are not a 'discrete and insular minority' requiring extra-
ordinary protection from the majoritarian political process."7 Powell's
response is that the cases do not hold that minority status is a necessary
prerequisite to strict scrutiny and that racial distinctions have been
declared suspect without expressing any qualifications as to minority
status.'
If is, of course, true that the cases say what Powell says that they
say, at least in the sense that the language that he quotes is indeed in
the opinions from which he quotes them. However, it is also true that, on
the facts, these cases did involve discriminations that were invidious and
hostile and that fell with harsh force upon a group that could be fairly
Id. at 289.
6Id.
TI d at 290.
Id. at 291; see, e.g., Korematsu v. United States, 323 U.S. 214, 216 (1944);
Kirabayashi v. United States, 320 U.S. 81, 100 (1943).
46 WASHINGTON AND LEE LAW REVIEW [Vol. XXXVIII
described as a discrete minority. In these cases, the judges have tended
to avoid harsh characterizations. Brown v. Board of Education9 con-
stitutes the very paradigm of this bland style. The judges who wrote
these opinions wanted to lower tempers, not raise them, and so they
adopted a rhetorical style that seemed appropriate to that end.
Moreover, they perhaps saw their job as educating the public into higher
aspirations, and so they stated the principles of decision in terms of
abstract aspirations which could be future goals. The rhetorical strategy
here has often seemed to be an attempt to change the facts for the
future by moderating one's description of the facts of the past; the plea
for the future being a plea for moderation, the facts as to the past have
typically been described in moderate language. However, this strategy
left an opening to Powell. He is able to claim that the generality of the
language in these opinions constitutes the actual holding of the cases.
In studying this rhetorical technique, the most important thing we
should notice is that the technique of the argument corresponds with the
desired result. The result is to be that racial distinctions are suspect
without regard to historical context. It fits with this result to argue from
the words of prior cases without using the context of those words.
However, Lewis Powell understands that persuasion requires more
than citation of authority, and so he asserts in Part III.B. of his opinion
that his conclusion "is rooted in our nation's constitutional and
demographic history."0" In support of this thesis, he offers approximately
four pages of history.
The history begins with a paragraph about the history of the four-
teenth amendment as interpreted by the Supreme Court. He points out
that the earliest cases interpreting the equal protection clause stated
that it was enacted for the protection of the newly freed slaves. He ad-
mits that judges in fact failed to keep this promise of protection of the
freedmen and instead turned away from the equal protection clause to
the due process clause, which they used for the protection of business.
He claims that only in modern times has the Court abandoned its use of
the due process clause to impose substantive economic doctrines upon a
legislature and begun to use the equal protection clause as an important
source of restraint upon political action.
A possible response to this story could be to assert that it was now
time to revive the original and correct interpretation. However the next
paragraph starts off with a rather different proposition. "By that time it
was no longer possible to peg the guarantees of the Fourteenth Amend-
ment to the struggle for equality of one racial minority."'1 Of course, one
cannot turn back the clock; we can never make time or history run
' 347 U.S. 483 (1954).
,o4 38 U.S. at 291.
" Id. at 292.
1981] RHETORIC OF POWELL'S BAKKE
backwards. If indeed, history has made it impossible to revive the
original understanding, then we should not do it.
What counts for impossibility? There are two strands to Powell's
argument. First, the original interpretation was itself not historically
necessary, since the text permits a much broader interpretation. Second,
the continued flow of immigration into the country has made our nation
a nation of minorities. Logically, there are several ways of using this
evidence. If immigration has indeed brought other minorities to our
shores, then one can use the broad language of the equal protection
clause as authorization to extend its substantive protections to them
also. The question would be whether their case is fairly analogous. Thus,
if some racial or ethnic group could show that it was suffering from in-
vidious and hostile discrimination of the sort that the freed slaves suf-
fered under, then a case would be made for extending the protections of
the clause to them. In short, the historical events that are cited by
Powell do nothing more than establish another historical problem. They
do not establish that the historical context of racial distinctions should
be irrelevant.
Having argued from authority and from history, Powell next makes
an argument based upon institutional limits. Starting from the assertion
that our nation is multi-racial and multi-ethnic, he proceeds to the obser-
vation that a person's status is not a permanent feature of the political
landscape but one that can shift as we locate individuals in time and
place, in history and geography. In this context, the Court has no prin-
cipled way of judging to whom special solicitude may justly be given. His
own words are: "The kind of variable sociological and political analysis
necessary to produce such rankings simply does not lie within the
judicial competence.... . 2 Does this mean that judges cannot understand
history?
Justice Powell's next step is to link this argument about institu-
tional competence with grand theories about the constitution itself. He
states: "By hitching the meaning of the Equal Protection Clause to these
transitory considerations, we would be holding, as a constitutional prin-
ciple, that judicial scrutiny of classifications touching on racial and
ethnic background may vary with the ebb and flow of political forces."1
Powell offers the following as a reason for believing that such variability
is bad: "Also, the mutability of constitutional principle, based upon shift-
ing political and social judgments, undermines the chances for consistent
application of the Constitution from one generation to the next, a critical
feature of its coherent interpretation."'" And he cites Archibald Cox for
the proposition that, "In expounding the Constitution, the Court's role is
to discern principles sufficiently absolute to give them roots throughout
Id. at 297.
12
13I d- at 298.
Id. at 299.
"
48 WASHINGTON AND LEE LAW REVIEW [Vol. XXXVIII
the community and continuity over significant periods of time, and to lift
them above the level of the pragmatic political judgments of a particular
15
time and place.
The problem with discerning such principles is that we cannot see
into the future and know what principles will have continuity in the
generations to come. Indeed, predicting the future course of history
would seem far more difficult than understanding the present historical
context of racial discrimination. Even so, this rhetoric can persuade by
appealing to that great American hope. that the law can be above
politics. The Constitution is a symbol of the continuity of the nation, and
judicial independence is the political technique for guaranteeing that
this symbol of continuity is not dragged down into partisan politics. This
symbolic need is so deep in the American imagination as to be above
argument. Unfortunately, it does not fit well with the facts. The Burger
Court has not maintained smooth historical continuity with the decisions
of the Warren Court, but has made some abrupt departures. And of
course, the Warren Court in its turn did what it could to bury the legacy
of the Vinson Court and establish its own vision. Indeed, one could go
back further, drawing other lines of division and break, seeing the Con-
stitutional history of our country in terms of discontinuity and not con-
tinuity. Should we wish to escape from these historical facts?
In this connection, it is useful to recall some words of John Marshall.
In Marbury v. Madison,16 he asserted: "It is a proposition too plain to be
contested, that the constitution controls any legislative act repugnant to
it; or, that the legislature may alter the constitution by an ordinary act.
Between these alternatives there is no middle ground. The constitution
is either a superior, paramount law, unchangeable by ordinary means, or
it is on a level with ordinary legislative acts, and, like other acts, is
alterable when the legislature shall please to alter it."'7
Powell's contrast of the permanent versus the transitory finds its
roots in John Marshall's rhetoric about change. Despite the fact that
both arguments are equally nonsensical, they are both equally per-
suasive. My own experience of teaching Marbury v. Madison is that this
is the single most persuasive part of Marshall's opinion to the average
student. When I teach the case, I often ask students what arguments
they can offer in defense of judicial review. There are numerous
arguments that are offered, many of which are different from, and
perhaps better than, those offered by Marshall. However, once I limit
the students and get them to distinguish between the arguments that
they have offered and those that Marshall offers, then they choose more
often than not Marshall's remarks about the unchangeable Constitution.
However, the practical issue is who is to have the final say as to the
,Id. (quoting A. Cox, THE ROLE OF THE SUPREME COURT IN AMERICAN GOVERNMENT 114
(1976)).
, 5 U.S. (1 Cranch) 137 (1803).
" Id- at 177.
1981] RHETORIC OF POWELL'S BAKKE
constitutionality of a piece of legislation: the legislature or the court. It
is true, as John Marshall said, that if the legislature has the final say,
then the legislature can change the Constitution, for all practical pur-
poses, by the ordinary act of passing a statute. What John Marshall failed
to point out is that if the Supreme Court has the final say, then it can
change the Constitution by the ordinary act of deciding a case. Further-
more, one can see that they have done it. As a practical matter, the issue
is not whether the Constitution will change. The only practical issue is to
whom we should trust the power of changing the Constitution: the Con-
gress, or the Supreme Court. Alternatively, we might sometimes trust
one, sometimes the other.
A question like this one can not be decided by logic. The political
question of whether the Supreme Court or the Congress should be able
to change the Constitution must have a political answer and not a logical
one. It also seems to be true that-political questions get tangled with
rhetorical questions: I do not mean that rhetoric will shape politics or
vice versa, but that it is hard to distinguish the two. If we give judges
the responsibility for changing the Constitution, we shall have to argue
about changes with a different sort of rhetoric. This seems to entail that
our basic political questions include a question of how we should talk.
In Part III.C., Powell returns to case analysis. Lawyers for the
university had cited precedents in which preferential classifications,"5
were approved without being subjected to strict scrutiny.19 Powell dealt
with these cases by distinguishing each of them. Of course, the cases
cited were in fact distinguishable; cases generally are." Powell is surely
correct when he says that the problems involved in those cases were
altogether different from the problem involved in the case at bar. Even
so, the performance is rather shabby; earlier he picked out language
from cases without reference to their facts, and he then used the
language as authority for the proposition that a classification alone,
without regard to its hostility or invidiousness, should trigger strict
scrutiny. In this section, he refuses to generalize in this way, but instead
he demands that cases be read in light of their facts and understood in
light of the particular context. This schizophrenia in technique seems to
presuppose amnesia in the reader.
IV.
Having established to his own satisfaction that strict scrutiny is ap-
propriate, Powell next states what this entails: "We have held that in
" "Preferential classifications" are classifications that operate to the advantage of a
minority group, rather than to its detriment.
" See, e.g., Califano v. Webster, 430 U.S. 316 (1977) (gender based classifications);
Franks v. Bowman Transp., Co., 424 U.S. 747 (1976) (racial classifications as remedy for
employment discrimination); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971)
(racial classifications in school desegregation).
438 U.S. at 300-05.
50 WASHINGTON AND LEE LAW REVIEW [Vol. XXXVIII
'order to justify the use of a suspect classification, a State must show
that its purpose or interest is both constitutionally permissible and
substantial, and that its use of the classification is 'necessary ... to the
accomplishment' of its purpose or the safeguarding of its interest."'21
This is the orthodox two-prong test: examine the end; test the fitness of
means to end.
This sort of rhetoric does not persuade everyone. First, there are
reasons for doubting the whole enterprise. It is a curious anthropomor-
phism to imagine that a 'law' or a 'state' is the sort of thing that can have
a purpose. Of course, the people who enact laws can and do have pur-
poses. To establish what purposes different people had when they
engaged in lawmaking and the degree to which those different persons
had common or disparate purposes requires that one engage in a difficult
historical inquiry. One can doubt whether the court is searching for
something that is existent, and even if it is existent, one can criticize the
skill with which the search is conducted.
Despite these criticisms, there are numerous rhetorical appeals in an
argument such as this. One appeal arises from its analogy to scientific
and technological talk, which is, of course, an important part of our
civilization. In technology, this sort of argument is called means-end ra-
tionality, and there are those who are tempted to identify rationality
solely with this way of proceeding. By association, an argument cast in
this form can seem rigorous. Since dispassionate logical rigor is one of
the forms that judicial independence can take, this form of argument
perhaps has some resonance with many people's image of the ap-
propriate judicial role.
A second source of persuasiveness can be the analogues which this
argument has in ordinary life. We are often met with the quandry of
what to do when someone proposes to do something with which we are
uneasy, and yet we do not wish to give an outright No as an answer. We
often try to avoid giving either a Yes or No, but instead attempt to
reshape the proposal; we quite often open our persuasion by asking ques-
tions such as: What are you trying to do?; Is this really the most impor-
tant thing to you? Such rhetorical moves are often quite effective: it may
force a redescription; it may open avenues for negotiation. As a result of
such questions, we are often able to say such things as: you can do the
same thing in another way, and done in this other way, you will not be
doing those things that are offensive to us; or, why don't you leave out
some of these things that are not really centrally important to you,
especially since these less important things are what make your pro-
posal offensive to us. The appeal is to moderate behavior, to reasonable-
ness. This is a powerful appeal as it works in ordinary life, and a judicial
opinion that embodies it will strike us most likely as persuasive.
"1I d. at 305 (quoting In re Griffiths, 413 U.S. 717, 721-22 (1973)).
19811 RHETORIC OF POWELL'S BAKKE
For my purposes, the test is less important than the way it is used.
First, I must emphasize that the purposes that Powell discusses have
not been established by evidence as matters of historical fact. They exist
only in the world of litigation. Perhaps a more realistic way of viewing
them would be to use the word 'excuses' instead of the word 'purposes.'
Viewed in this way, Powell's way of proceeding can be seen to
overlap with ordinary life. When we are challenged for doing what we
have done, we often try to justify it by offering excuses. These excuses
do not constitute the biography of our action. The reason for this is sim-
ple enough: we often do not know exactly why we have done the things
that we have done. The real reasons for action perhaps can never be
known, but we can ask whether there are good reasons, whether' we are
justified in doing what we have done. There are dangers in doing this.
Hypocrisy can be encouraged; one can be led into talking about one's life
as though it were an abstract intellectual problem, as opposed to
something one must live. But at times we know of no other way to pro-
ceed. Here too, we might be persuaded that Powell is proceeding cor-
rectly. He does not know, and perhaps there is no way to find out, exactly
why the medical faculty of Davis did what it did. So he can consider
various hypothetical reasons why they might have done what they did,
and then he can judge the action in this hypothetical mode. Of course, we
must still have some expectation that the hypotheses are not altogether
removed from reality.
Four purposes ('excuses'?) are stated, the first being "'reducing the
historic deficit of traditionally disfavored minorities in medical schools
and in the medical profession.'""2 However within one page it is restated
as follows: "If petitioner's purpose is to assure within its student body
some specified percentage of a particular group merely because of its
race or ethnic origin, such a preferential purpose must be regarded not
as insubstantial but as facially invalid. Preferring members of any one
group for no reason other than race or ethnic origin is discrimination for
its own sake."" This appears to change rather substantially the state-
ment of purpose as originally hypothesized. As restated, Powell makes it
appear as though the first purpose is including blacks because of a mere
preference for blacks as such. However, the purpose as originally stated
was related to a particular historical problem.
We see here in microcosm one of the problems of translating the or-
dinary means-end rationality of technology into the classification-
purpose rhetoric of constitutional law. When one states a purpose, it is
hard to get it to stand still. Technological ends can be clearly stated.
Purposes are hard to state, and we see here how their vagueness of
statement can lead to subtle shifts of language that seem to make a dif-
438 U.S. at 306 (quoting Brief for Petitioner, Regents of the Univ. of Cal. v. Bakke,
438 U.S. 265 (1978)).
438 U.S. at 307.